Is Extended Leave a Reasonable Accommodation?

By: Allison Mann

In September, the Seventh Circuit Court of appeals answered this question in the negative, in Severson v. Heartland Woodcraft, Inc. However, the Equal Employment Opportunity Commission (EEOC) has not abandoned its position that an employer must offer extended leave as a reasonable accommodation under the Americans with Disabilities Act.

The Facts:

Severson, an employee of Heartland, suffered from back pain, which he aggravated when he wrenched his back at home. He notified Heartland that he would not be able to work due to the pain. Heartland put him on FMLA leave. Severson treated his back pain using non-surgical intervention during his leave time, however, his condition did not improve. He informed Heartland that he would be required to undergo back surgery just two weeks before he exhausted his FMLA leave, and requested that he be granted an additional two months of leave in order to recover from surgery. Heartland refused his request, and Severson was fired after his FMLA leave was completely exhausted. Heartland did tell Severson that he should reapply for a position once he was able work again.

Instead, Severson sued Heartland for disability discrimination under the ADA. He argued that Heartland failed to provide him with a reasonable accommodation, and identified three accommodations that could have been offered: (1) a two or three month leave of absence; (2) a transfer to a vacant job; or (3) a light-duty position.

The Law:

An employer must not discriminate a qualified individual on the basis of a disability, and must offer qualified individuals reasonable accommodation.

The Severson court focused on Severson’s request for additional leave time. It based its analysis on the definition of a qualified individual: “a person who, with or without reasonable accommodation, can perform the essential functions of the employment position.” It found, that an individual that requires an extended absence from work cannot perform the essential functions of their job, and thus, cannot be a qualified individual under the ADA. It quoted: “not working is not a means to perform the job’s essential functions.” Note, however, that the court limited its decision. It recognized that there is still the possibility “that a brief period of leave to deal with a medical condition could be a reasonable accommodation in some circumstances.”

The EEOC, in an amicus brief, argued that additional leave time may qualify as a reasonable accommodation where the leave would be definite in duration, is requested in advance, and where the employee can likely return to work after the leave. The court rejected the EEOC’s position. It was the court’s concern that the EEOC’s position transformed the ADA into a medical leave statute, which should be reserved to the FMLA.

The Takeaway:

The question of whether extended leave is a reasonable accommodation is far from answered. Employer leave policies are likely to be a hot button issue for the foreseeable future. The court in Severson has limited the EEOC’s position, at least in the Seventh Circuit. It remains to be seen how other circuit courts will address the issue, and how the Seventh Circuit will deal with the questions that remain open.

It is highly unlikely that the EEOC will abandon its position on the issue of employee leave under the ADA. Importantly, the EEOC made it a specific goal in its Strategic Enforcement Plan for the years 2017 to 2021 to develop the law on leave policies that discriminate against workers with disabilities. The Severson opinion is only a start, and one potential roadblock. The EEOC has since brought suit against another employer with a strict leave policy not allowing for ADA accommodation upon exhaustion of FMLA leave.

In the meantime, employers must remain vigilant, and closely analyze any their own policies regarding the ADA, reasonable accommodation, and employee leave. It is unwise to automatically terminate an employee upon exhaustion of FMLA leave without examining whether the ADA may provide for protection, especially in light of the EEOC’s continued interest in the topic.

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Reprinted with permission from an article submitted for publication in the November, 2017 Southwest Area Human Resource Association newsletter.